How Israeli intelligence spent nine years interfering with an international court

Good morning. “You should help us and let us take care of you. You don’t want to be getting into things that could compromise your security or that of your family.”

That is a terrifying message for anyone to hear from the head of the Mossad, Israel’s foreign intelligence agency. Even more astonishing is that this was a message to the chief prosecutor of the international criminal court (ICC).

The man allegedly delivering the message was Yossi Cohen, a close ally of the Israeli prime minister, Benjamin Netanyahu. He was in a meeting with Fatou Bensouda, who was considering opening a formal investigation into alleged war crimes and crimes against humanity in occupied Palestinian territories. And his remarks, which Bensouda is said to have understood as a threat, did not come in a vacuum. They were part of a nine-year Israeli campaign to interfere with the ICC, and ultimately to derail its war crimes investigations. It was an effort that involved surveillance, hacking and apparent intimidation.

All of this is exposed in a remarkable investigation by the Guardian’s Harry Davies and Bethan McKernan, in collaboration with the Israeli-based magazines +972 and Local Call. For today’s newsletter, I spoke to Johann Soufi, an international prosecutor and former head of Unrwa’s legal office in Gaza, about what we’ve learned about Netanyahu’s fears of the ICC, and how he sought to act on them. Here are the headlines.

Five big stories

In depth: ‘Israel has never hidden that it considers the court a threat’

Last week, Karim Khan, Fatou Bensouda’s successor at the ICC, announced that he was seeking arrest warrants for Benjamin Netanyahu and Israeli defence minister Yoav Gallant, as well as three senior Hamas officials, for war crimes and crimes against humanity. That decision was linked to crimes committed by Hamas during the 7 October attack, and by both sides during the ensuing war. But the ICC’s interest in Israel stretches back to 2015, when Palestine became a member of the court after its statehood was recognised by the UN general assembly.

That meant that even though Israel was not itself a member of the court, any alleged war crimes committed in Palestine would come under the ICC’s jurisdiction. According to one former Israeli intelligence official, that change led to an effort across the country’s “entire military and political establishment” that amounted to a “war” against the organisation.

The investigations published yesterday – widely followed up in the Israeli media – describe the nature of that war. “It’s not a surprise in general,” said Johann Soufi. “Israel has never hidden that it considers the court a threat to its interests. But it is shocking how blatant some of this is. It shows the level of impunity and freedom that Israeli officials felt they had.”

What Israel is accused of

Soon after Fatou Bensouda (pictured above) was appointed, two men turned up at her home in The Hague. They declined to identify themselves, but left an envelope containing hundreds of dollars in cash and a note with an Israeli phone number. An ICC review of the incident concluded Israel was likely to be signalling to the prosecutor that it knew where she lived.

That incident is only the tip of the iceberg – and most of the intelligence work carried out by Israel was much less obvious. After the ICC began a preliminary inquiry into what was called “the situation in Palestine”, Netanyahu’s national security council commissioned its spy agencies to seek intelligence that could help protect senior officers from charges.

That involved routine spying on phone calls made by Bensouda and her staff with Palestinians – unavoidable because the ICC had no access to Gaza and the West Bank. Netanyahu was said to be “obsessed” with the intercepts. (In response to these allegations and the others in the investigation, a spokesperson for Netanyahu’s office said: “The questions forwarded to us are replete with many false and unfounded allegations meant to hurt the state of Israel.”)

“It’s extremely hard for the ICC to disrupt this,” Soufi said. “In order to do its work, it is necessary for the prosecutor to talk to a lot of people. The weakness lies not so much with the court personnel, but rather at the other end, with the victims or witnesses. Their phones can be tapped, and they can be pressured. And because the court has a limited footprint outside of The Hague, it’s difficult to protect them.”

The Mossad director’s role

Perhaps the single most remarkable aspect of the investigation is the role played by Yossi Cohen, who was said to have acted as Netanyahu’s “unofficial messenger” to the court, and Bensouda in particular, when he was director of the Mossad. The most significant allegations concern his attempts to persuade the then-chief prosecutor not to pursue a full investigation of alleged Israeli war crimes in Gaza.

Cohen, formerly Netanyahu’s national security adviser, is thought to have first met Bensouda in 2017, when he introduced himself to her at the Munich security conference. In New York the following year, Bensouda went to a hotel room expecting a meeting with the then-president of the Democratic Republic of Congo, Joseph Kabila – only for her staff to be asked to leave the room, and Cohen to walk in, three sources said.

Cohen – who did not respond to a request for comment – went on to call her repeatedly, intensifying his efforts after she announced she had grounds to open a full investigation into war crimes in Gaza in 2019. In a further meeting he is alleged to have shown her photographs of her husband had been taken covertly when the couple were visiting London. She went on to inform a small group of senior ICC officials about his behaviour.

Besides his shock at the fact Cohen would undertake these tasks personally, Soufi said the investigations revealed “that the prosecutors have been extremely courageous. I might be naive, but I think it shows the independence and integrity of people working in international justice, even under the most extreme pressure.”

How Israel sought to thwart prosecutions

One key goal of the Israeli intelligence effort was to obtain information on cases under consideration by the ICC so that it could seek to undermine them. To do so, it sought to make use of the principle of complementarity – which says the ICC should not hear cases that are the subject of credible investigations on a state level.

Multiple sources said Israel sought to learn about particular allegations so it could open its own retroactive investigations, and cut the ICC out. “That is a very efficient way to protect a soldier accused of a war crime, let’s say of torture on a specific date with a specific victim,” Soufi said.

“However, now the Prosecutor is seeking to charge Netanyahu and Gallant for acts which can be described as methods of warfare, rather than individual events, the only option to challenge admissibility would be to trigger a credible independent investigation into their entire conduct during the conflict.” For obvious reasons, that is not a step Netanyahu is prepared to take.

Why the ICC’s investigations matter – and what happens next

Prior to the Guardian’s revelations, Khan said his office will “not hesitate to act” if “attempts to impede, intimidate or improperly influence the officials of this court” do not end. That could mean invoking article 70 of the court’s founding statute, which allows it to prosecute “offences against the administration of justice”. While the court typically only has jurisdiction over offences carried out in member states, article 70 offences are theoretically not bound by the same limit.

“It’s speculation, because article 70 prosecutions are rare,” said Soufi. “But the prosecutor has the power to prosecute anyone who intimidates him or makes threats to officials of the court. However, I believe that the Prosecutor will face the same difficulties in enforcing the decision.”

Why, when the ICC cannot reach suspects in Israel, does all of this appear to have mattered so much to Benjamin Netanyahu? “The mere fact that as a political leader, you cannot travel in 124 countries, is a very significant restraint in its own right,” Soufi said. “And symbolically, it counters the narrative about Israel doing everything it can to respect international law and protect civilians.”

The investigations into “the situation in Palestine” are crucial for the ICC as well – and all the more so since the 7 October attack. And, Soufi said, support from Western democracies is essential to their own claims to support a rules-based international order. (The American, British, and German governments have all opposed the decision to seek arrest warrants.)

“We have seen the consequences of impunity on the conflict,” Soufi said. “I truly believe this was an existential question for the court. If it had not shown that it is truly independent, a lot of countries from the global south might say that it has no legitimacy to prosecute their citizens. The alternative was to be seen as a biased court, in the hands of western power, when faced with one of the most significant possible crimes of conflict this century.”

What else we’ve been reading

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Rishi Sunak’s Rwanda scheme may be on hold pending the result of the general election, but that still leaves more than 100 asylum seekers in limbo. Diane Taylor tells their stories. Toby Moses, head of newsletters

The important divide in the Conservative party is not between right and left, writes Henry Hill – but between realists and utopians. His comment piece has important things to say about where the party should go after a likely election defeat. Archie

Rachel Dixon has 28 tips on how to be a better tourist – from the obvious (don’t use a drone) to the less so (you’ll need something other than carbon offsetting to assuage your plane-based guilt). Toby

We’re all used to reading about the dangers of social media – but Adrian Horton’s piece on the new Netflix doc Dancing for the Devil reveals a seamy underbelly to some hugely popular TikTok dance crazes. Toby

Sport

Tennis | Novak Djokovic began his French Open title defence with victory over Pierre-Hugues Herbert 6-4, 7-6 (3), 6-4. A miserable tournament for Great Britain’s singles players at the tournament came to an end as defeats for Katie Boulter and Dan Evans meant that British players have failed to win a singles match in Paris for the first time since 2020.

Cricket | From the first-timers of the USA and Canada to the Bangladesh player who has featured at every edition, Ali Martin and Simon Burnton break down every team at the Men’s T20 World Cup, which begins this weekend.

Football | Jürgen Klopp said he would celebrate with a bus parade if Liverpool were awarded the two Premier League titles they lost by a point to Manchester City as he bid a tearful farewell to fans at a “Danke Jürgen” tribute night. Klopp also praised the club’s owners, comparing them to others at “London clubs” under whose control he “wouldn’t have survived a year”.

The front pages

“Israeli spy chief ‘threatened’ ICC official over war crimes inquiry” is the Guardian’s splash, which you know all about having read this far. “Tory nonsense exposed … Cops drop Rayner probe” says the Daily Mirror. “Locking horns … tax battle rages over pensions” – that’s the Metro,while the i has “Triple lock plus to save retirees 28p per week on state pension”.

“Tory vow to ban ‘rip-off’ university degrees by changing law” is the Daily Mail’s lead – in more muted colours in the Times, it’s “Sunak plans university cuts to boost apprentices”. The Daily Express dials things back up – “PM: Axe to fall on university rip-off degrees”. “Sunak: I’m talking to Johnson about the election” – the top line from the Daily Telegraph’s “exclusive interview” with the PM. Top story in the Financial Times seems electorally agnostic: “Ofwat sketches out ‘recovery regime’ to avoid nationalising water groups”.

Today in Focus

Cartoon of the day | Martin Rowson

The Upside

A bit of good news to remind you that the world’s not all bad

Living in the centre of Manchester, Kate Bradbury was surprised to learn that her urban surroundings were a hive of activity for hedgehogs, birds and more. As she writes in her Guardian long read (an edited extract from her new book, One Garden Against the World: In Search of Hope in a Changing Climate), land development – not to mention the effects of climate change across the world – have sadly destroyed many similar natural habitats.

But, writes Bradbury, nature “has the means – to a degree – to limit the effects of climate change. Intact ecosystems such as forests, grasslands, oceans and peatlands are ‘carbon sinks’ – natural storage systems that remove atmospheric carbon and other greenhouse gases – and are essential if we are to minimise global heating”.

Cultivating our own little ecosystems is, she continues, crucial to this fightback. “I truly believe our gardens and green spaces have the answer to the problem that’s plaguing the modern world right now: our disconnect from nature and the consequent acceptance of living in a dying world,” she writes. “Let’s not accept, let’s grow!”

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